New Orleans The Who song about the new boss being the same as the old boss is a classic case, even if rare, of culture speaking to class. Where we find that the new boss is the same as the old boss over and over again is in the popular instances of subcontracting and outsourcing, where a company or public authority wants the work done on the cheap but without having the responsibility for payroll, taxes, and insurance, but still de facto mandates the terms and conditions of employment.
I don’t have enough hands and feet to enumerate the times that one of our union contractors has tried to explain to me that a worker was fired or transferred or a wage increase was delayed or denied because the company or government entity that controlled their contract had ordered it. Old boss still the boss with a straw boss in between. We’ve won many of these grievances by threatening to litigate the joint-employer status with the NLRB, no matter what the rule might have been at the time. Local 100 first organized garbage laborers on Waste Management trucks throughout Louisiana after a lengthy hearing with the NLRB where the company denied co-employer status before we won the election, and then admitted it once we were bargaining. There’s only a thin line twixt and between, and all parties know it.
This issue has been a ping pong ball going back and forth between Republican and Democratic administrations and their appointees on the National Labor Relations Board (NLRB) for some time. The Obama board had moved forward to hold the big bosses accountable for the little bosses’ labor practices. The Trump board dialed that back again. Now the Biden board has largely proposed a joint employer rule that would go back close to the Obama rule.
Employers aren’t happy. The staunch anti-union management outfit Littler posted this on its site:
The Board’s proposal largely reestablishes the broad Obama-era standard of joint employment, under which one company may be deemed the joint employer of a second company’s employees not only where it directly or immediately exercises control over the second company’s workforce, but where the first company’s putative control is indirect, or even simply reserved but not ever actually exercised. The importance of this change should not be understated: joint-employer status can have profound consequences for employers. A joint employer may be required to bargain with a union representing jointly employed workers; may be subject to joint and several liability for unfair labor practices committed by the other employer; and may be subject to labor picketing that would otherwise be unlawful.
Obviously, they are waving the bloody shirt of unions gone wild, but winning, even under the new standard, won’t be easy.
Much of the media attention has focused on the relationship between franchisees and their parent companies or brands, like McDonalds. Indeed, those relationships would be wide open for review and agitation, but I bet their lawyers will work overtime on delays and workarounds on the rule. Where the pockets aren’t as deep and the practices of subcontracting and outsourcing are more the issue, this could be a huge open door to an opportunity to prove that the old boss is still the real boss. If we are on top of our jobs, we might just win some of these fights while the window is open for another several years.